TAMBAYA FILANI v BORNU NATIVE AUTHORITY (FSC 212/1961) [1961] NGSC 30 (11 August 1961)




                   (1961) All N.L.R. 493


Division: Federal Supreme Court

Date of Judgment: 11th August, 1961

Case Number: FSC 212/1961

Before: Brett, AG. C.J.F.

              Hurley, C.J.N.R.

                                         Bellamy, AG. C.J. Lagos

Appeal from the High Court (North)

The appellant was charged before a Native Court with the offence of Culpable Homicide. He pleaded guilty. All of the eye-witnesses, except one who could not be found, gave evidence for the prosecution. The appellant also gave evidence. The trial court omitted to ask the appellant to inform the court of the names and whereabouts of his witnesses, as required by section 389 of the Northern Region Criminal Procedure Code, but stated that there was no need to call nay defence witnesses as the accused had pleaded guilty. The appellant did not object to this, and when asked if he had anything more to say replied in the negative. He did not ask to call witnesses. He was convicted of Culpable Homicide punishable with death.

He appealed to the High Court, but did not there complain of the trial court's failure to comply with section 382, or that he had been denied the right to call evidence. His appeal was dismissed.

On appeal to the Federal Supreme Court, Counsel for the appellant raised the question of the omission to comply with section 382, but could not inform the court as to what witnesses the appellant might have called or what they could have said in his defence.

On Appeal


The Federal Supreme Court will not set aside a conviction because of an irregularity occurring during the trial, which has not been objected to at the time, and which does not occasion a miscarriage of justice.

Appeal dismissed.

Laws referred to:-

N.R. Penal Code, 1959 (N.R. No. 18 of 1959), section 220, 221.

N.R. Criminal Procedure Code, 1960 (N.R. No. 11 of 1960) section 389.

APPEAL from the High Court (North).

Cole for the Appellant.

Oshodi, Crown Counsel, for the Respondent.

Hurley, C.J.N.R. (delivering the Judgment of the court):-We dismissed this appeal on 7th August, 1961, for the following reasons:-

The appeal was argued on the ground, raised for the first time in this Court and raised by learned Counsel for the appellant as a ground additional to those filed by the appellant with his notice of appeal, that the appellant was prejudiced at his trial in that the court of trial denied him the right to call evidence in support of his defence. The appellant was convicted together with one Manu in the court of the Shehu of Bornu on a charge of culpable homicide by causing the death of one Haruna contrary to section 220 of the Penal Code of Northern Nigeria. To this charge he pleaded guilty. The conviction was for the offence of culpable homicide punishable with death contrary to section 221(1) of the Penal Code. Section 221 contains no subsection (1), and in the appeal the conviction has been taken as a conviction under section 221. After the accused had pleaded to the charge, each was asked to give his explanation and in reply each made a statement in his defence. The trial court did not ask the accused to give the names of the witnesses, if any, whom they intended to call in their defence. By this omission, the trial court failed to comply with section 389 of the Criminal Procedure Code of Northern Nigeria. After the accused had made their statements, the court said "There is no need to call any defence witnesses as the accused have already pleaded guilty." Each accused was then asked had he anything more to say and replied that he had nothing to say.

The case against the accused at the trial was that they went to the deceased's house in the middle of the night together with a third man, Bala, and that there each of the three joined in beating the deceased and so caused his death. Bala had afterwards absconded and could not be found. This case was supported by two witnesses for the prosecution who were eye-witnesses. It is apparent that the two witnesses, the accused, Bala and the deceased were the only persons present at the scene. All that the accused said in their defence was that when they arrived at the deceased's house he came out of the house holding an axe, and that the appellant did not join in beating him, being prevented by one of the prosecution witnesses. Neither the appellant nor his co-accused questioned the witnesses on these points, though they had the opportunity of doing so.

Learned Counsel for the appellant was unable to tell us what any witness could have said in the appellant's defence, or what witnesses there could have been. It is apparent that all the eye-witnesses gave evidence except Bala, who could not be found. The appellant did not object when the trial court said that defence witnesses were unnecessary, and did not ask to call any witness then. The complaint that the appellant had been denied the right to call evidence was not made until the case came to this Court, and was not made by the appellant himself.

In these circumstances, we thought that no failure of justice had been occasioned, and for that reason we dismissed the appeal.

Appeal dismissed.

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